Last updated on February 28th, 2021
Last Updated on February 28, 2021 by Steven Meurrens
When considering whether humanitarian & compassionate considerations (“H&C“) justify an exemption from the normal requirements of Canadian immigration, visa officers are required to be alert, alive and sensitive to the best interests of any child affected by the decision. To demonstrate that they have met this requirement, a decision-maker must typically identify and define the child’s interests, and then examine them with a great deal of attention.
Baker v. Canada (Minister of Citizenship and Immigration) was the landmark Supreme Court of Canada decision which stands for the principle that the best interests of the child must be taken into consideration during H&C exemption requests. This principle is now codified in s. 25(1) and s. 25(1.1) of Canada’s Immigration and Refugee Protection Act (the “IRPA“), which state:
25. (1) Subject to subsection (1.2), the Minister must, on request of a foreign national in Canada who applies for permanent resident status and who is inadmissible — other than under section 34, 35 or 37 — or who does not meet the requirements of this Act, and may, on request of a foreign national outside Canada — other than a foreign national who is inadmissible under section 34, 35 or 37 — who applies for a permanent resident visa, examine the circumstances concerning the foreign national and may grant the foreign national permanent resident status or an exemption from any applicable criteria or obligations of this Act if the Minister is of the opinion that it is justified by humanitarian and compassionate considerations relating to the foreign national, taking into account the best interests of a child directly affected.
25.1 (1) The Minister may, on the Minister’s own initiative, examine the circumstances concerning a foreign national who is inadmissible — other than under section 34, 35 or 37 — or who does not meet the requirements of this Act and may grant the foreign national permanent resident status or an exemption from any applicable criteria or obligations of this Act if the Minister is of the opinion that it is justified by humanitarian and compassionate considerations relating to the foreign national, taking into account the best interests of a child directly affected.
The Immigration, Refugees and Citizenship Canada Permanent Residence Guidelines – The humanitarian and compassionate assessment: Best interests of a child specify the following factors that immigration officers should consider when analyzing the best interests of the child:
- The age of the child;
- The level of dependency between the child and the H&C applicant or the child and their sponsor;
- The degree of the child’s dependency in Canada;
- The child’s links to the country in relation to which the H&C assessment is being considered;
- The conditions of that country and the potential impact on the child;
- Medical issues or special needs the child may have;
- The impact to the child’s education; and
- Matters related to the child’s gender.
Impact of Kanthasamy
In Kanthasamy v. Canada (Citizenship and Immigration), Canada’s Supreme Court reiterated that visa officers needed to go beyond simply stating that they took the best interests of a child into account. The Court wrote (citations removed):
A decision under s. 25(1) will therefore be found to be unreasonable if the interests of children affected by the decision are not sufficiently considered. This means that decision-makers must do more than simply state that the interests of a child have been taken into account. Those interests must be “well identified and defined” and examined “with a great deal of attention” in light of all the evidence.
Gomez Valenzuela v. Canada (Citizenship and Immigration) is a good example of how an officer’s assessment of the best interests of the child is now to be conducted since the Supreme Court of Canada’s decision in Kanthasamy. There, Justice Diner wrote:
Visa officers may be presumed to know that applicants would benefit from life in Canada but this does not relieve them of the obligation to identify and examine the interests of any affected child with “significant attention” and care. The Officers, in focusing only on the positives of life in Ecuador and the negatives of life in Canada, did not conduct their examination with the necessary level of attention and care.
Another example is Williams v. Canada (Citizenship and Immigration), where the Federal Court stated that:
I find that the officer did not examine the interests of the employer’s daughter Clarissa with a great deal of attention. I acknowledge that the officer referred to the evidence from her employer, from the pastor at the church they attend and from a daycare worker; and also referred to the Applicant’s own assertion that she has been the children’s main caregiver since 2012. However, that assertion and evidence was never examined or addressed, even if to say that the degree of attachment between Clarissa and the Applicant was similar to that which exists between many children and a parent who may be removed from Canada.
Instead, the officer simply concluded that, given Clarissa’s young age, it is reasonable to expect that her interests would be minimally affected by the Applicant’s departure from Canada.
In my view, the officer’s failure to examine Clarissa’s interests to any meaningful degree was unreasonable.
An Important Factor, but Not Determinative
While decision makers must actively and seriously consider the best interests of the child, the interests of the child are not determinative. A good summary of this principle can be found in Jiminez v. Canada (Citizenship and Immigration), where the Federal Court cited Legault v. Canada, 2002 FCA 125, in stating that (“emphasis added”):
In Suresh, the Supreme Court clearly indicates that Baker did not depart from the traditional view that the weighing of relevant factors is the responsibility of the Minister or his delegate. It is certain, with Baker, that the interests of the children are one factor that an immigration officer must examine with a great deal of attention. It is equally certain, with Suresh, that it is up to the immigration officer to determine the appropriate weight to be accorded to this factor in the circumstances of the case. It is not the role of the courts to re-examine the weight given to the different factors by the officers.
In short, the immigration officer must be “alert, alive and sensitive” (Baker, supra, at paragraph 75) to the interests of the children, but once she has well identified and defined this factor, it is up to her to determine what weight, in her view, it must be given in the circumstances. . . . It is not because the interests of the children favour the fact that a parent residing illegally in Canada should remain in Canada (which, as justly stated by Justice Nadon, will generally be the case), that the Minister must exercise his discretion in favour of said parent. Parliament has not decided, as of yet, that the presence of children in Canada constitutes in itself an impediment to any “refoulement” of a parent illegally residing in Canada (see Langner v. Canada (Minister of Employment and Immigration) (1995), 29 C.R.R. (2d) 184 (F.C.A.), leave to appeal refused,  3 S.C.R. vii). [Emphasis added.]
Canadian Foundation for Children, Youth, and the Law v. Canada (Attorney General), was another Supreme Court of Canada decision which held that the best interests of the child are not determinative in the analaysis. There, the Supreme Court stated that:
It follows that the legal principle of the “best interests of the child” may be subordinated to other concerns in appropriate contexts. For example, a person convicted of a crime may be sentenced to prison even where it may not be in his or her child’s best interests. Society does not always deem it essential that the “best interests of the child” trump all other concerns in the administration of justice. The “best interests of the child”, while an important legal principle and a factor for consideration in many contexts, is not vital or fundamental to our societal notion of justice, and hence is not a principle of fundamental justice. (Emphasis added.)
Nonetheless, while the best interest of the child does not necessarily trump other factors for consideration, decision-makers must consider children’s best interest as an important factor, giving them substantial weight, being alert to them, and being sensitive to them.
It is important to note that when reviewing and considering to seek judicial review of an officer’s refusal of an H&C request that not all judges detailed analysis regarding the best interests of the child.
In Hawthorne v. Canada, for example, the Federal Court of Appeal stated that:
The officer does not assess the best interests of the child in a vacuum. The officer may be presumed to know that living in Canada can offer a child many opportunities and that, as a general rule, a child living in Canada with her parent is better off than a child living in Canada without her parent. The inquiry of the officer, it seems to me, is predicated on the premise, which need not be stated in the reasons, that the officer will end up finding, absent exceptional circumstances, that the “child’s best interests” factor will play in favour of the non- removal of the parent. In addition to what I would describe as this implicit premise, the officer has before her a file wherein specific reasons are alleged by a parent, by a child or, as in this case, by both, as to why non-removal of the parent is in the best interests of the child. These specific reasons must, of course, be carefully examined by the officer.
To simply require that the officer determine whether the child’s best interests favour non-removal is somewhat artificial – such a finding will be a given in all but a very few, unusual cases. For all practical purposes, the officer’s task is to determine, in the circumstances of each case, the likely degree of hardship to the child caused by the removal of the parent and to weigh this degree of hardship together with other factors, including public policy considerations, that militate in favour of or against the removal of the parent.
Justice Kane in Chandidas v Canada (Citizenship and Immigration) meanwhile stated that (citations added):
Moreover, the officer is presumed to know that living in Canada would offer the child opportunities that they would not otherwise have and that to compare a better life in Canada to life in the home country cannot be determinative of a child’s best interests as the outcome would almost always favour Canada.
Accordingly, as some judges will determine that it can typically be implied that the best interests of the child are to remain in Canada, or to remain with their parents who would otherwise be deported, a seemingly sparse analysis of a child’s best interests will not always lead to a decision being set aside. As well, pursuant to the Federal Court of Canada decision in Ismail v. Canada (Public Safety v. Emergency Preparedness), “acknowledging” and “noting” the evidence is not sufficient. Officers must analyze the evidence.
As well, and as per the Federal Court of Canada decision in Torres v. Canada (Citizenship and Immigration), where there is more than one child officers must consider the best interest of each.
The fact that the child is unborn does not negate the obligation of the Officer to undertake the BIOC analysis (Hamzai v Canada (MCI), 2006 FC 1108 at para 33) and Ismail v. Canada (Public Safety v. Emergency Preparedness)
The Duty of Officers to Inquire
In Kisana v. Canada (Minister of Citizenship and Immigration), 2009 FCA 18, the Federal Court of Appeal declined to answer the following certified question:
Does fairness require that an officer conducting an interview and assessment of an application by a child for landing in Canada to join her parents be under a duty to obtain further information concerning the best interests of the child if the officer believes the evidence presented is insufficient?
Justice Nadon, however, stated (citations removed):
The appellants argue that in the circumstances of this case, the officer was obliged to make an effort to obtain further information regarding the best interests of the children if she was of the opinion that what was before her was insufficient. The respondent argues that an applicant bears the burden of making his or her case on an H&C application and that, in the circumstances of this case, the officer was not under any duty to assist the appellants in discharging that onus.
It is trite law that the content of procedural fairness is variable and contextual. The ultimate question in each case is whether the person affected by a decision “had a meaningful opportunity to present their case fully and fairly.” In the context of H&C applications, it has been consistently held that the onus of establishing that an H&C exemption is warranted lies with an applicant; an officer is under no duty to highlight weaknesses in an application and to request further submissions. In Owusu, above, this Court held that an H&C officer was not under a positive obligation to make inquiries concerning the best interests of children in circumstances where the issue was raised only in an “oblique, cursory and obscure” way. The H&C submissions in that case consisted of a seven-page letter in which the only reference to the best interests of the children was contained in the sentence: “Should he be forced to return to Ghana, [Mr. Owusu] [page381] will not have any ways to support his family financially and he will have to live every day of his life in constant fear.”
In support of their view that there was a duty upon the officer to make further inquiries, the appellants rely on two Federal Court decisions, namely, Del Cid v. Canada; and Bassan v. Canada (Minister of Citizenship and Immigration). In Del Cid, above, O’Keefe J. expressed the view that the officer had an obligation to make further inquiries regarding the best interests of the children. However, he recognized this duty specifically in respect of Canadian-born children. His finding was also contingent on his view that the evidence initially placed before the officer was sufficient to merit further inquiries.
It is important to note that in Del Cid, above, there was evidence before the officer that the applicant’s very young children were negatively affected by the separation: they were unable to eat, cried for extensive periods of time, were integrated into the Canadian system and spoke English as their language, and would be losing the love and support of their custodial parent. Failure to balance these factors made the officer’s decision unreasonable.
In Bassan, above, McKeown J. expressed a view similar to that expressed by O’Keefe J. in Del Cid, above, when he said at paragraph 6:
An H and C officer must make further inquiries when a Canadian born child is involved in order to show that he or she has been attentive and sensitive to the importance of the rights of the child, the child’s best interests and the hardship that may be caused to the child by a negative decision. As stated by Madam Justice L’Heureux-Dubé, such further inquiry “is essential for an H and C decision to be made in a reasonable manner”.
For the reasons that follow, I need not express a view as to the correctness of the decisions in Del Cid and Bassan, above. However, to the extent that these decisions reached a conclusion inconsistent with these reasons, they should not be followed.
There can be no doubt that the officer could have asked more questions in order to obtain additional information with regard to the twins’ situation in India, but, as we shall see, she was under no duty to do so in this case. It may be that the pointed and narrow questions disclosed by the CAIPS notes probably did not constitute the most effective manner of obtaining information from these applicants, particularly in light of the lack of documentary evidence provided by them. However, the vacuum, if any, was created by the appellants’ failure to assume their burden of proof. In these circumstances, the officer’s poor interviewing techniques, if that be the case, are, in my view, insufficient to justify intervention on our part.
The appellants have failed to specify what areas of investigation or inquiry the officer should have pursued, other than in the following respects. At paragraph 3 of their memorandum, they state that although the officer asked the girls “what their lives were like with their aunt and how they were doing in school”, she did not ask them “how they coped without their parents, if they missed them or if they had any particular problems because of separation from them”. They then affirm at paragraph 25 of their memorandum that “it is implicit in the officer’s reason for rejecting the application that had the officer been satisfied that the twins were being supported by their parents and had ongoing contact with them — which were asserted but not supported by corroborative evidence — the results might well have been favourable to the girls”.
With respect to the first point, I fail to see the necessity of asking questions with regard to whether the children missed their parents or whether the separation caused them any particular problem. In my judgment, there would have been no purpose in asking these questions, considering that Mr. Carpenter, in his letter of March 6, 2006, had already indicated that the separation was having a considerable emotional impact on the family and that it “would be harsh and inhuman” to prevent the parents from raising their children in Canada. Further, one has to assume that the officer was capable of realizing that it must have been difficult for children of that age to be permanently separated from their parents.
With respect to the second point, it is difficult, if not impossible, to say whether the officer’s decision would have been different had she received additional evidence concerning the nature of the relationship between the parents and their children and, more particularly, with regard to the frequency of their contacts, i.e. daily, weekly, monthly, etc. However, the appellants’ assertion on this point does not lead to the conclusion that the officer ought to have pursued the matter further.
Given that the appellants were represented by an immigration consultant, that the girls were clearly asked to bring to the interview documents pertaining to “communication with your sponsor, e.g. cards/letters, telephone bills”, and considering that their aunt had accompanied them to the interview and was also interviewed and thus had the opportunity of providing an explanation with regard to the children’s plight, I cannot conclude that the officer had a duty to make further inquiries. I have not been persuaded that, in the circumstances of this case, fairness required the officer to provide them with another opportunity to produce documents and/or information in support of their application.
The burden was on the appellants to demonstrate to the officer that there were sufficient H&C grounds to grant them an exemption from the requirements of the Act and its Regulations. They were unable to meet that burden. Hence, I conclude that the officer did not have a duty to make further inquiries.
Because of the highly factual and variable circumstances of each H&C application, I cannot see how the certified question can be answered in the affirmative. However, I do not rule out the possibility that there may be occasions where fairness may or will require an officer to obtain further and better information. Whether fairness so requires will therefore depend on the facts of each case.
Younger Isn’t Always Better
It should be noted that many people often think that the younger a child is the more important it is that that child be reunited with his/her parent. Somewhat counter-intuitively, this is not the case. The courts have consistently held that the younger a child is, then the lower the impact of a parent’s removal will generally be.
As the Federal Court noted in Li v. Canada (Public Safety and Emergency Preparedness), 2019 FC 1235, in situations where the grandparent is the primary or sole caregiver of the child, and particularly where no reasonable alternative means of childcare is available, the best interests of the child might be for the grandparent to remain in Canada. However, this is unlikely to be the case where a grandparent provides care and assistance to her grandchildren, but is not the primary caregiver. Furthermore, without more, the separation between a child and an extended family member such as a grandparent is not sufficient to warrant H&C relief.
As the Federal Court noted in Kaur v. Canada, 2017 FC 549, pregnancy and the likely birth of a child are relevant and, in many cases, compelling facts that must be taken into account in deciding humanitarian & compassionate requests. This decision is also notable because a visa officer specifically said that it would not be following a different Federal Court decision, which Justice Barnes noted was inappropriate.
The Federal Court is often disdainful of suggestions that the ability of children to communicate with their father electronically or see them once a year is a sufficient mitigating factor on the physical separation of parents from children. In Yang v. Canada (Public Safety and Emeregency Preparedness), 2019 FC 1236, for example, the Court noted:
Second, the IAD relied on rationale and conclusions this Court has previously considered to be unreasonable concerning the future ability for the children to communicate with Mr. Yang, given that his wife and two children (all three being Canadian citizens) stated they would remain in Canada rather than face the prospect of living in China. The IAD’s conclusion that the two children could communicate with their father electronically or see him once a year while on vacation did not adequately address the concerns that were raised in the evidence, including a detailed psychological assessment from Dr. Weir, which spoke at length about the impact on these two children, and others in analogous situations (by referring to studies of the long-term impacts of separation from a parent at a young age). Indeed, this Court has recognized that infants may simply be too young to establish a relationship with a parent via videoconference (see, for instance, Oladele v Canada (Citizenship and Immigration), 2017 FC 851 at para 61).
While courts have been clear that BIOC is but one factor of several that must be balanced by the decision-maker, and that the children’s interests do not predominate or supersede all other factors, they are nonetheless an important factor, as noted in Baker and reiterated in Kanthasamy (at para 38). As described above, paragraph 67(1)(c) of IRPA specifically mentions BIOC. Failure to accord importance to it ignores the will of the legislator and decisions of the Supreme Court.
In Celise v. Canada (Minister of Citizenship and Immigration), Justice Mosley Certified the following question:
In a best interests of the child analysis, is an Officer required first to explicitly establish what the child’s best interests are, and then to establish the degree to which the child’s interests are compromised by one potential decision over another, in order to show that the Officer has been alert, alive, and sensitive to the best interests of the child?